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Filing # 19724343 Electronically Filed 10/23/2014 11:25:23 AM
IN THE CIRCUIT COURT OF THE
17" JUDICIAL CIRCUIT IN AND FOR
BROWARD COUNTY, FLORIDA
CASE NO. 14-014218 (04)
KHAI NGUYEN, individually, and as
Personal Representative of the Estate of
MAI TUYET NGUYEN, deceased, and on
Behalf of KRISTEN HUYNH, KYLIE NGUYEN,
KADEN NGUYEN, the surviving children of
MAI TUYET NGUYEN, and as the natural parent
of KADEN NGUYEN, a minor,
Plaintiff,
v.
PLANTATION GENERAL HOSPITAL, L.P. d/b/a
PLANTATION GENERAL HOSPITAL, ALEX BIRMAN, M.D.,
SUNLIFE OB/GYN SERVICES OF FT. LAUDERDALE, P.A.,
GEORGES EDOUARD, M.D., GEORGES EDOUARD, M.D.,
P.A., d/b/a PLANTATION PAVILION OB/GYN, MELISSA
MACHAN, ARNP, ROBERTA SANTINI, M.D., DORI RATHBUN,
FLORIDA UNITED RADIOLOGY, L.C.,
Defendants.
/
DEFENDANT PLANTATION GENERAL HOSPITAL'S MOTION FOR PROTECTIVE
ORDER WITH RESPECT TO ITEMS 14 AND 15 OF PLAINTIFFS' REQUEST TO
PRODUCE AND 2, 9 AND 11 OF PLAINTIFFS' INTERROGATORIES
Defendant Plantation General Hospital, L.P., d/b/a Plantation General Hospital
("Hospital") requests that this Court enter a protective order with respect to items 14 and
15 of Plaintiffs' Request to Produce and items 2, 9 and 11 of Plaintiffs’ Interrogatories to
the Hospital and states as follows:
1. Plaintiffs have served their Request to Produce to Defendant, Plantation
General Hospital, L.P., d/b/a Plantation General Hospital (the "Request") and
Interrogatories to Defendant, Plantation General Hospital, L.P., d/b/a Plantation General
*** FILED: BROWARD COUNTY, FL HOWARD FORMAN, CLERK 10/23/2014 11:25:23 AM.****Nguyen v. Plantation General Hospital
CASE NO. 14-014218 (04)
Hospital (the "Interrogatories"), copies of which are attached as Composite Exhibit A.
2. Items 14 and 15 of the Request and items 2, 9 and 111 of the
Interrogatories (the "Subject Requests") seek records and testimony that is protected
from discovery or introduction into evidence in any civil or administrative action under
Florida Statutes §§ 395.0191(8), 395.0193(8), 395.0197, and 766.101(5).
3. To the extent Plaintiffs rely on Article X, Section 25 of the Florida
Constitution (Amendment 7") for access to testimony in response to the subject
Interrogatories, Amendment 7 is limited by its terms, which provide a patient "a right to
have access to any records made or received in the course of business by a health care
facility or provider relating to any adverse medical incident" which right is defined as
"making the records available for inspection and copying," See Fla. Const, Art X, §
25(a) and (b)(4).
4. Because Amendment 7 only provides a patient a right to have access to
records, Amendment 7 does not apply to interrogatories, Nothing in Amendment 7, the
enabling statute or the Florida Supreme Court's ballot approval opinion suggests that
Amendment 7 requires licensed facilities such as the Hospital to answer interrogatories
propounded in a civil action. See Advisory Opinion to the Attorney General Re Patients’
Right To Know About Adverse Medical Incidents, 880 So. 2d 617 (Fla. 2004).
Amendment 7 plainly applies only to requests for records and documents that can be
inspected and copied, such as requests made in a request for production — and does
' The Hospital objects to items 9 and 11 of the Interrogatories to the extent that their scopes include the
identities of individuals whose only knowledge regarding the issues in the instant lawsuit arises from their
participation in the Hospital's risk management, credentialing, peer review, or quality assurance
processes, See, e.g., Palms of Pasadena Hosp. v. Rutigliano, 908 So. 2d 594 (Fla. 5th DCA 2005)
(quashing trial court order requiring a hospital to identify the members of its credentialing committee).Nguyen v. Plantation General Hospital
CASE NO. 14-014218 (04)
not apply to interrogatories that seek testimony.
5. “Amendment 7 does not require production of documents . . that do not
contain information about particular adverse medical incidents." Morton Plant Hosp.
Assn, Inc. v. Shahbas, 960 So. 2d 820, 827 (Fla. 2d DCA 2007) (holding that a
discovery request seeking documents relating to credentialing and re-credentialing of a
physician encompasses documents that do not contain information about particular
medical incidents); see also Bartow IIMA, LLC v. Kirkland, 126 So. 3d 1247, 1254 (Fla.
2d DCA 2013) (quashing order requiring blanket production of documents on a privilege
log and requiring the circuit court to "address whether the documents ... contain reports
of adverse medical incidents under Amendment 7"); Cofumbia Hospital Corporation of
South Broward, d/b/a Westside Regional Medical Center v. Fain, 16 So. 3d 236, 242
(4th DCA 2009) (cautioning that "[c]are must be taken to remember that Amendment 7
affects only reports pertaining to adverse medical incidents."). An "adverse medical
incident" under Amendment 7 has been interpreted to mean a specific event involving a
specific patient which caused or could have caused injury or death. See W Fla. Reg’!
Med. Ctr. v. See, 18 So. 3d 676 (Fla. 1st DCA 2009), affd, 79 So. 3d 1 (Fla. 2012).
Furthermore, the court in See explained that the privilege at issue was "still in effect to
the extent that it does not prohibit the production of records relating to adverse medical
incidents under Amendment 7." See, 18 So, 3d at 689.
6. Amendment 7 does not require the Hospital to provide a patient access to
records that are not made or received in the course of business by a health care facility
or provider. A hospital's course of business has been defined as "the care and
treatment of its patients, including records of such care and treatment, not theNguyen v. Plantation General Hospital
CASE NO. 14-014218 (04)
preparation of special reports and the conduct of special investigations." See Forbes v.
Dhillon, MD., et al, Case No. 51-2007-CA-3758-WS/G (Fla. 6th Cir. Ct. February 7,
2011).
7. Importantly, the Hospital is not required to begin a search for responsive
records that are within the scope of Amendment 7 until Plaintiffs pay in full of the
Hospital's estimated cost of discovery. Florida Statutes § 381.028(7)(c)1, which the
Florida Supreme Court left intact in its opinion in Fla. Hospital Waterman v. Buster, 984
So. 2d 478 (Fla. 2008), allows for a health care facility or provider to require that the
patient requesting records under Amendment 7 pay in full all costs prior to the facility or
provider acting on the request.
MEMORANDUM OF LAW
Florida law protects against the discovery of records considered by credentialing,
peer review, and quality assurance committees that function within the Hospital, as well
as records generated by or received by the Hospital's risk management department.
Specifically, section 395.0191(8), Fla. Stat., protects the investigations, proceedings,
and records of the Hospital in considering and acting upon an application for staff
membership or clinical privileges. Section 395.0193(8), Fla. Stat., protects the
investigations, proceedings, and records of the Hospital's peer review panels,
disciplinary boards or committees acting in their peer review or disciplinary function.
Section 395.0197(4), Fla. Stat., states thaf'incident reports are part of the workpapers of
the attorney defending the licensed facility," and section 395.0197(13), Fla. Stat., states
that annual reports and Code 15 reports submitted to AHCA are not "discoverable or
admissible in any civil or administrative action, except in disciplinary proceedings by theNguyen v. Plantation General Hospital
CASE NO. 14-014218 (04)
agency or the appropriate regulatory board, nor shall records obtained pursuant to s.
456.071 be available to the public as part of the record of investigation for and
prosecution in disciplinary proceedings made available to the public by the agency or
the appropriate regulatory board."
Section 766.101(5), Fla. Stat., protects the investigations, proceedings, and
records of Hospital committees formed to evaluate and improve the quality of health
care rendered by providers of health service, to determine that health services rendered
were professionally indicated or were performed in compliance with the applicable
standard of care, or that the cost of health care rendered was considered reasonable by
the providers of professional health services in the area.
The same statutes protect against the compulsion of testimony regarding the
Hospital's credentialing, peer review, and quality assurance functions. For example,
section 766.101(1), Fla. Stat., applies to meetings of committees "formed to evaluate
and improve the quality of health care rendered by providers of health service, to
determine that health services rendered were professionally indicated or were
performed in compliance with the applicable standard of care." /d. The statute states
that "no person who was in attendance at a meeting of such committee shall be
permitted or required to testify in any such civil action as to any evidence or other
matters produced or presented during the proceedings of such committee or as to any
findings, recommendations, evaluations, opinions, or other actions of such committee or
any members thereof" See section 766.101(5), Fla. Stat. Sections 395.0191(8) and
395.0193(8), Fla, Stat., contain identical language specific to credentialing and peer
review processes. These statutes also protect the identities of participants in theNguyen v. Plantation General Hospital
CASE NO. 14-014218 (04)
Hospital's risk management and quality assurance processes from discovery. See, e.g.,
Palms of Pasadena Hosp. v. Rutigliano, 908 So. 2d 594 (Fla. 5th DCA 2005) (quashing
trial court order requiring a hospital to identify the members of its credentialing
committee).
Prior to the passage of Amendment 7, no records or information within the scope
of the above statutes was discoverable or admissible for any purpose in a civil action.
While Amendment 7 provides patients access to certain formerly privileged records, the
scope of that access is limited by the Amendment's terms: Amendment 7 only
provides patients a right to access to records or an adverse medical incident
made or received in the course of business by a health care facility or a health
care provider. Amendment 7 does not entitle a patient access to records that are not
records of an adverse medical incident made or received in the course of business by a
health care facility or provider. Amendment 7 does not entitle a patient to discover the
identities of participants in the Hospital's medical review or quality assurance processes.
Amendment 7 does not entitle a patient to compel testimony.
A. Amendment 7 Does not Apply to Interrogatories
Item 2 of the Interrogatories seeks testimony relating to the Hospital's protected
risk management, credentialing, peer review, and quality assurance processes. The
scopes of items 9 and 11 of the Interrogatories can be interpreted to include the
identities of participants in these processes.
Such information is statutorily protected from discovery or introduction into
evidence in this case. See Fla. Stat. §§ 395.0191(8), 395.0193(8), and 766.101(5); see
also Palms of Pasadena Hosp. v. Rutigliano, 908 So, 2d 594 (Fla. 5th DCA 2005)Nguyen v. Plantation General Hospital
CASE NO. 14-014218 (04)
(quashing trial court order requiring a hospital to identify the members of its
credentialing committee); Mt. Sinai Med. Ctr. of Greater Miami, Inc. v. Bernstein, 645
So, 2d 530 (Fla. 3d DCA 1994) (quashing order overruling hospital's objections to
discovery of information relating to reports of the hospital's medical review committee
and information relating to people participating on the medical review committee).
As noted, Amendment 7 only purports to provide patients with "a right to have
access to any records . . . relating to any adverse medical incident," which right is
defined as "making the records available for inspection and copying." See Fla. Const.
Art X, § 25(a) and (b)(4). Nothing in Amendment 7, the enabling statute or the Florida
Supreme Court's ballot approval opinion suggests that Amendment 7 requires licensed
facilities such as the Hospital to answer interrogatories propounded in a civil action. See
Advisory Opinion to the Attorney General Re Patients' Right To Know About Adverse
Medical Incidents, 880 So. 2d 617 (Fla. 2004). Thus, Amendment 7 plainly applies only
to requests for records and documents that can be inspected and copied — and does
not apply to interrogatories that seek testimony.
In fact, the respondents in Fla. Hospital Waterman v. Buster, 984 So. 2d 478
(Fla. 2008), conceded that Amendment 7 does not affect the applicability of immunity
from testimonial compulsion afforded the Hospital under Chapters 395 or 766 of the
Florida Statutes. A copy of the Buster Respondents' Response to Petitioner's Motion for
Rehearing in the Florida Supreme Court is attached hereto as Exhibit B. At page 2 of
the Response, the Respondents state that "[als Waterman notes the Florida Hospital
decision ... certainly did not invalidate[,] the two immunity privileges which the
legislature included in peer review and risk management statutes in order to makeNguyen v. Plantation General Hospital
CASE NO. 14-014218 (04)
workable the public policy of assuring quality healthcare." Respondents go on to agree
that Buster "is consistent with the Court's advisory opinion approving Amendment 7 for
the ballot which did not suggest that immunity from suit or from testimonial compulsion
was affected by Amendment 7." /d.
During the oral argument in Buster, Justice Pariente of the Florida Supreme
Court agreed with this interpretation, asking for agreement that "what is not at stake
here is that nobody is saying that the immunity that people enjoyed before this
amendment, that is immunity from participating or even testimonial compulsion . | see
that as being different." Transcript of the Oral Argument before the Florida Supreme
Court, 20, 44, 45, in Fla. Hosp. Waterman v. Buster, SC06-688, SC06-912, attached as
Exhibit C.
In Gray v. St. Petersburg General Hospital, et al., Case No.: 08-4287, Division
— Cl-l 1 (Fla. 6th Cir. Ct. August 22, 2008), attached hereto as Exhibit D, the court, in
an opinion after Buster, decided that Amendment 7 does not apply to interrogatories,
finding that:
The Court finds that Amendment 7 purports to provide patients with "a right to
have access to any records ... relating to any adverse medical incident," which
right is defined as "making the records available for inspection and copying." See
Fla. Const. art X, § 25(a) and (b)(4). Nothing in Amendment 7, the enabling
statute or the Florida Supreme Court's ballot approval opinion suggests that
Amendment 7 requires licensed facilities such as the Hospital to provide written
responses to questions or to respond to interrogatories propounded in a civil
action. See Advisory Opinion to the Attorney General Re Patients’ Right To Know
About Adverse Medical Incidents, 880 So. 2d 617, (Fla. 2004). Thus,
Amendment 7 plainly applies only to requests for records and documents that
can be inspected and copied, such as requests made in a request for production
— and does not apply to any other type of requests, such as those made in an
interrogatory.
Other trial courts faced with this issue have reached the same conclusion. SeeNguyen v. Plantation General Hospital
CASE NO. 14-014218 (04)
also Troup v. Largo Med. Ctr., et al., Case No.: 12-0088578-Cl-13 (Fla. 6th Cir. Ct, May
12, 2014) (granting hospital's motion for protective order to the extent interrogatories
sought the identities of parties who came to have knowledge of incident through their
capacity as legal representative or involvement in peer review or similar committee),
attached as Exhibit E; Lawrence v. Lawnwood Medical Center, Inc., et al., Case No. 56-
2009-CA-008405 (Fla. 19th Cir. Ct, June 27, 2012) (finding that Amendment 7 "does not
permit a patient to compel testimony of otherwise privileged information relating to a
hospital's credentialing, peer review, and quality assurance functions" and that "Plaintiff
may not compel testimony concerning any investigation, proceeding, or record of a
Hospital credentialing, peer review, and/or quality assurance committee."), attached as
Exhibit F; McKoy v. Columbia Hosp. Corp. of S. Broward, d/b/a Westside Reg’! Med.
Ctr., Case No.: CACE 10045900 12 (Fla. 17th Cir. Ct. May 22, 2012) (holding that the
plaintiff could not obtain discovery via interrogatory of the steps the defendant hospital
undertook in credentialing a physician), attached as Exhibit G; Grafal v. Osceola
Regional Hospital, Inc., et al., Case No. 09-CA-1526-MP (Fla. 9th Cir. Ct. December 22,
2010) (sustaining the hospital's objections to interrogatories and entering protective
order "based upon a finding that Amendment 7 does not authorize interrogatories."),
attached as Exhibit H; Bridges v. Memorial Hospital Jacksonville, et al., Case No.: 16-
2008-CA-002389 Div CV—B (Fla. 4th Cir. Ct. February 25, 2009) (finding that "there is
no authority within [Amendment 7] to allow interrogatories about "adverse medical
incidents" to be served on health care providers" and that "Rio allow interrogatories
would require Memorial to give testimony, in the form of sworn answers, regarding such
adverse medical incidents."), attached as Exhibit I.Nguyen v. Plantation General Hospital
CASE NO. 14-014218 (04)
Furthermore, multiple Florida courts have specifically found that Amendment 7
does not require a hospital to identify the participants in a hospital's risk management,
credentialing, peer review or quality assurance processes. See Baptist Hosp. of Miami,
Inc. v. Garcia, 994 So. 2d 390, 393 (Fla. 3d DCA 2008) (holding that hospital not
required to produce a privilege log regarding credentialing documents that would
"divulge names and confidential information, which not only have nothing to do with
adverse medical incidents discoverable under Amendment 7, but which remain exempt
from discovery under sections 395.0191(8) and 766.101(5)"); Marcus v. University
Hosp. and Med. Ctr., Case No.: 05-08138 (02) (Fla. 17th Cir. Ct. Dec. 1, 2010 ("The
identities of the members of the executive committee and Board of Trustees are
privileged, not discoverable and not admissible as evidence at the time of trial’),
attached as Exhibit J; Mark v. Miami Beach Healthcare Group, Ltd., Case No. 10-18139
CA 09 (Fla. 11th Cir. Ct. November 5, 2010) (holding that hospital not required to
identify individuals who provided information or participated in peer review panel,
medical review committee, risk management committee or department, hospital
committee or other hospital board), attached as Exhibit K; Nei! v. Surgical Park Center,
Ltd., et al, Case No. 09-05492 CA 13 (Fla. 11th Cir. Ct. Nov. 3, 2009), cert. denied
(concluding that "the name address and phone number of the members of the
credentialing committee who gave a nurse staff privileges, constitute privileged
information to the extent such information is contained in the credentialing file and is
beyond the scope of Amendment 7."), attached as Exhibit L. The identities of the
participants in the Hospital's credentialing, peer review, and quality assurance
processes are statutorily protected and not discoverable under Amendment 7.Nguyen v. Plantation General Hospital
CASE NO. 14-014218 (04)
B. The Scope of Amendment 7 is Limited to Records of Adverse
Medical Incidents
While Amendment 7 provides patients access to some otherwise privileged
records, the scope of that access is limited by the Amendment's terms: Amendment 7
only provides patients a right to access to records of an adverse medical incident that
are made or received in the course of business by a health care facility or a health care
provider. See Bartow HMA, LLC v. Kirkland, 126 So. 3d 1247, 1254 (Fla. 2d DCA 2013)
(quashing order requiring production and requiring the circuit court to "address whether
the documents ... contain reports of adverse medical incidents under Amendment 7;
whether the privileges asserted are preempted by application of Amendment 7; or, in
the case of a responsive document that is not discoverable under Amendment 7,
whether the asserted privilege applies."); Columbia Hospital Corporation of South
Broward, d/b/a Westside Regional Medical Center v. Fain, 16 So. 3d 236, 242 (4th DCA
2009) (cautioning that "Mare must be taken to remember that Amendment 7 affects only
reports pertaining to adverse medical incidents."); and Morton Plant Hosp. Ass 'n, Inc. v.
Shahbas, 960 So. 2d 820, 827 (Fla. 2d DCA 2007) ("Amendment 7 does not require
production of documents . . . that do not contain information about particular adverse
medical incidents.").
The See court explained the limits of the term "adverse medical incident" in
Amendment 7. Specifically, "the word 'incident' itself indicates an isolated event." See
W. Fla. Reg'l Med. Ctr, v. See, 18 So. 3d 676, 690 (Fla. 1st DCA 2009), affd, 79 So. 3d
1 (Fla. 2012). The phrase "adverse medical incident" can only mean "a specific incident
involving a specific patient that caused or could have caused injury to or the death ofNguyen v. Plantation General Hospital
CASE NO. 14-014218 (04)
that patient." /d. (citing Shahbas, 960 So. 2d at 827). The court explained that while an
adverse medical incident may be a negligent act or omission, that "act or omission must
be connected with a patient and must be the cause or near-cause of an injury or death."
See, 18 So. 3d at 690. Moreover, the court in See explained that the privilege at issue
was "still in effect to the extent that it does not prohibit the production of records relating
to adverse medical incidents under Amendment 7." See, 18 So. 3d at 689. Accordingly,
records within the scopes of Fla. Stat. §§ 395.0191(8), 395.0193(8), 395.0197 and
766.101(5) remain protected unless they are records of a specific incident involving a
specific patient that caused or could have caused injury to or the death of that patient.
Accordingly, any records responsive to item 14 of the Request that are not
records of an adverse medical incident remain privileged from discovery.
Cc. The Scope of Amendment is Limited to Records Made or Received in
the Course of Business by a Healthcare Facility or Provider.
Amendment 7 only provides a patient the right to have access to records "made
or received in the course of business by a healthcare facility or provider." See Art. X,
sect 25(a), Fla. Const.; Benjamin v. Tandem Healthcare, Inc., 998 So. 2d at 566, 570
(Fla. 2008) ("In interpreting a constitutional amendment, we begin with the amendment's
plain language."). While records created as part of the Hospital's efforts in providing
care and treatment to patients may be made or received in the course of business,
records outside of such practice are not and thus would fall outside the scope of
Amendment 7.
Courts have uniformly held the business of a hospital is the care and treatment
of patients. See, e.g., Cooks v. O'Brien Properties, Inc., 710 A.2d 788, 795 (Cann. App.Nguyen v. Plantation General Hospital
CASE NO. 14-014218 (04)
Ct. 1998) ("the business of a hospital is treating patients") (citation omitted); Williams v.
Alexander, 129 N.E.2d 417, 419 (NY Ct. App. 1955) ("The business of a hospital, it is
self-evident, is to diagnose and treat its patients’ ailments."). Conversely, it is expressly
not the business of a hospital to make records for use in subsequent litigation. See,
e.g., Temple v. F. W. Woolworth Co., 356 A.2d 880, 882 (Conn. 1975) ("[l]t is not the
business of a hospital to collect and preserve information for use in litigation"); Bauer v.
Veith, 130 N.W.2d 897, 900 (Mich. 1964) (stating that it cannot be "claimed that it was
‘the regular course of such [hospital] business to make such memorandum or record’)
(citation omitted, alteration in original); Green v. City of Cleveland, 444, 83 N.E,2d 63,
65 (Ohio 1948) ("[I]t was the business of the hospital to diagnose plaintiff's condition
and to treat her for her ailments, not to record a statement describing the cause of the
accident in which plaintiff's injuries were sustained"). Thus, to the extent that a record is
made not for the purpose of care and treatment, the record is not within the scope of
Amendment 7.
Accordingly, a record created for purposes of investigation of an unusual event
for potential future litigation that is not similarly mandated is not made "in the course of
business." Cf. Brown v. International Paper Co., 710 So. 2d 666, 668 (Fla. 2d DCA
1998) (finding that a letter from Federal Express and handwriting analyst's report
created as part of investigation of forged purchase order not made in the course of
business); and Simmons v. State, 697 S. 2d 985, 986 (Fla. 4th DCA 1997) (finding that
a list itemizing stolen items not demonstrated to be made in course of business).
In Forbes v, Dhillon, MD., et al., Case No. 51-2007-CA-3758-WS/G (Fla. 6th Cir.
Ct. February 7, 2011), a copy of which is attached as Exhibit M, the court agreed withNguyen v. Plantation General Hospital
CASE NO. 14-014218 (04)
this analysis, stating: "It is the belief of the undersigned that Community Hospital's
‘course of business’ is the care and treatment of its patients, including records of such
care and treatment, not the preparation of special reports and the conduct of special
investigations." /d. The court limited the disclosure of records to "those that appear to
have been made 'in the course of business’ of Community Hospital.” /d.
Thus, records that may be responsive to item 14 of the Request that are not
made as part of the care or treatment of a patient are not made or received in the
course of business by a healthcare facility or provider and, consequently, remain
privileged.
D. The Hospital is entitled to Its Costs Prior to Producing Records
Pursuant to Amendment 7
To the extent that Plaintiffs asserts Amendment 7 as a basis for access to
records responsive to items 14 and 15 of the Request, the Hospital is not required to
begin a search for records until Plaintiffs pay in full the Hospital's estimated costs to
search for and review the records which may be responsive. The Florida Supreme
Court in Buster upheld section 381.028(7)(c)1, Fla. Stat., which allows for the Hospital
to require that a patient pay in full the costs of production of records prior to acting on a
records request under Amendment 7. See also Columbia Hosp. Corp. of S. Broward v.
Fain, 16 So. 3d 236, 241 (Fla. 4th DCA 2009) (noting that that §381.028(7)(c)1 requires
payment prior to production, and that the provision was deemed to be valid in Buster).
This statutory provision is especially important here, where to respond just to
item 15 of the Request, the Hospital would have to review all risk management,
credentialing, peer review, and quality assurance records in its possession, custody orNguyen v. Plantation General Hospital
CASE NO. 14-014218 (04)
control created over the twenty (20) year period that the individuals named in the
request worked at the Hospital. Someone with sufficient training would have to
determine whether each record is responsive to the subject requests and also whether
the record is a record of an adverse medical incident made or received in the course of
business under Amendment 7. Next, the Hospital would have to redact any responsive
records of patient-identifying information pursuant to HIPAA’ s federal privacy
requirements. The process of de-identifying any responsive record produced would
have to be accomplished manually by a staff member familiar with the Hospital's
records and HIPAA privacy requirements. Finally, the Hospital would have to photocopy
the redacted records prior to production. The cost for the Hospital to respond to these
items, which Plaintiffs are obligated to pay prior to the Hospital beginning its search,
would be extremely high.
E. The Hospital is Not Required to Provide a Privilege Log with Respect
to Items 14 or 15 of the Request
Because this Court has yet to decide the proper scope of the Subject Requests,
and because Plaintiffs have yet to pay the estimated cost to produce the records
responsive to items 14 or 15 of the Request, the Hospital takes the position that it is not
required to provide a privilege log with respect to those items at this time.
Until the Court rules on the objections to production asserted by the Hospital, any
preparation of a privilege log is premature. See Gosman v. Luzinski, 937 So. 2d 293,
296 (Fla. 4th DCA 2006) (finding that "[bJefore a written objection to a request for
production of documents is ruled upon, the documents are not ‘otherwise discoverable’
and thus the obligation to file a privilege log does not arise."); accord Royal CaribbeanNguyen v. Plantation General Hospital
CASE NO. 14-014218 (04)
Cruises, Ltd. v. Doe, 964 So. 2d 713, 718 (Fla. 3d DCA 2007); Life Care Ctrs. of Am. v.
Reese, 948 So. 2d 830, 833 (Fla. 5th DCA 2007) (holding that "[t]he trial court [i]s
required to address the discoverability of the requested documents before ordering
[defendants] to review them all for privileged material."); Consol. Res. Health Care Fund
|, Ltd. v. Ruffini, 947 So. 2d 1278 (Fla. 4th DCA 2007) (determining that litigant did not
waive privilege by failing to respond to discovery requests where court did not first rule
on objections as to breadth of requests).
This view has been upheld in W. Fla. Reg’ Med. Ctr. v. See, 18 So. 3d 676 (Fla.
1st DCA 2009); and Columbia Hosp. Corp. of S. Broward v. Fain, 16 So. 3d 236 (Fla.
4th DCA 2009). These courts found that where threshold issues exist, the petitioner did
not waive the peer review, work product or any other privilege by failing to file a privilege
log.
WHEREFORE, Defendant Plantation General Hospital, L.P., d/b/a Plantation
General Hospital respectfully requests that this Court enter a protective order with
respect to items 14 and 15 of Plaintiffs Request to Produce and items 2, 9 and 11 of the
Plaintiff's Interrogatories to Hospital.
CERTIFICATE OF SERVICE
| HEREBY CERTIFY that a true and correct copy of the foregoing document was
e-filed and e-served to all on the attached mailing list this 23" day of October, 2014.
BY: /s/ JOHN W. MAURO, ESQ.
JOHN W. MAURO, ESQ.
jwm@bclmr.com
Florida Bar No: 276634
CAROL J. HEALY GLASGOW, ESQ.
cjg@belmr.com
Florida Bar No. 026239
BILLING, COCHRAN, LYLES,Nguyen v. Plantation General Hospital
CASE NO. 14-014218 (04)
MAURO & RAMSEY, P.A.
Attorneys for Defendants, PGH and Rathbun
SunTrust Center, 6" Floor
515 E. Las Olas Blvd.,
Fort Lauderdale, Florida 33301
Ofc: (954) 764-7150; Fax: (954) 764-7279
E-Filing Address: ftl-pleadings@bclmr.com
$:\34412204\PLDS\MPO to PI RTP & Int 10-23-14 - PGH.doc/klaNguyen v. Plantation General Hospital
CASE NO. 14-014218 (04)
Mailing List
Nguyen/PGH
344.12204
Maria D. Tejedor, Esq. Counsel for Plaintiff
Diez-Arguelles Tejedor
505 N. Mills Avenue
Orlando, FL 32803
407-705-2880
Jennifer@theorlandolawyers.com
mail@theorlandolawyers.com
Steven L. Lubell, Esq. Counsel for Dr. Birman & Sunlife OB/GYN
Ariel D. Widlansky, Esq.
Lubell & Rosen
200 S. Andrews Avenue
Ft. Lauderdale, FL 33301
954-880-9500
ariel@lubellrosen.com
Amanda@lubellrosen.com
M. Katherine Hunter, Esq. Counsel for Dr. Santini & Florida United
Chimpoulis, Hunter & Lynn, P.A. Radiology
7901 S.W. 36" Street, Suite 26
Davie, FL 33328
954-463-0033
954-463-9562 — fax
ahoney@chl-law.com
khunter@chl-law.com
cwieland@chl-law.com
Georges Edouard, M.D. (pro se)
4330 W. Broward Blvd. Suite C
Plantation, FL 33317
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Filing # 19724343 Electronically Filed 10/23/2014 11:25:23 AM IN THE CIRCUIT COURT OF THE 17" JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA CASE NO. 14-014218 (04) KHAI NGUYEN, individually, and as Personal Representative of the Estate of MAI TUYET NGUYEN, deceased, and on Behalf of KRISTEN HUYNH, KYLIE NGUYEN, KADEN NGUYEN, the surviving children of MAI TUYET NGUYEN, and as the natural parent of KADEN NGUYEN, a minor, Plaintiff, v. PLANTATION GENERAL HOSPITAL, L.P. d/b/a PLANTATION GENERAL HOSPITAL, ALEX BIRMAN, M.D., SUNLIFE OB/GYN SERVICES OF FT. LAUDERDALE, P.A., GEORGES EDOUARD, M.D., GEORGES EDOUARD, M.D., P.A., d/b/a PLANTATION PAVILION OB/GYN, MELISSA MACHAN, ARNP, ROBERTA SANTINI, M.D., DORI RATHBUN, FLORIDA UNITED RADIOLOGY, L.C., Defendants. / DEFENDANT PLANTATION GENERAL HOSPITAL'S MOTION FOR PROTECTIVE ORDER WITH RESPECT TO ITEMS 14 AND 15 OF PLAINTIFFS' REQUEST TO PRODUCE AND 2, 9 AND 11 OF PLAINTIFFS' INTERROGATORIES Defendant Plantation General Hospital, L.P., d/b/a Plantation General Hospital ("Hospital") requests that this Court enter a protective order with respect to items 14 and 15 of Plaintiffs' Request to Produce and items 2, 9 and 11 of Plaintiffs’ Interrogatories to the Hospital and states as follows: 1. Plaintiffs have served their Request to Produce to Defendant, Plantation General Hospital, L.P., d/b/a Plantation General Hospital (the "Request") and Interrogatories to Defendant, Plantation General Hospital, L.P., d/b/a Plantation General *** FILED: BROWARD COUNTY, FL HOWARD FORMAN, CLERK 10/23/2014 11:25:23 AM.****Nguyen v. Plantation General Hospital CASE NO. 14-014218 (04) Hospital (the "Interrogatories"), copies of which are attached as Composite Exhibit A. 2. Items 14 and 15 of the Request and items 2, 9 and 111 of the Interrogatories (the "Subject Requests") seek records and testimony that is protected from discovery or introduction into evidence in any civil or administrative action under Florida Statutes §§ 395.0191(8), 395.0193(8), 395.0197, and 766.101(5). 3. To the extent Plaintiffs rely on Article X, Section 25 of the Florida Constitution (Amendment 7") for access to testimony in response to the subject Interrogatories, Amendment 7 is limited by its terms, which provide a patient "a right to have access to any records made or received in the course of business by a health care facility or provider relating to any adverse medical incident" which right is defined as "making the records available for inspection and copying," See Fla. Const, Art X, § 25(a) and (b)(4). 4. Because Amendment 7 only provides a patient a right to have access to records, Amendment 7 does not apply to interrogatories, Nothing in Amendment 7, the enabling statute or the Florida Supreme Court's ballot approval opinion suggests that Amendment 7 requires licensed facilities such as the Hospital to answer interrogatories propounded in a civil action. See Advisory Opinion to the Attorney General Re Patients’ Right To Know About Adverse Medical Incidents, 880 So. 2d 617 (Fla. 2004). Amendment 7 plainly applies only to requests for records and documents that can be inspected and copied, such as requests made in a request for production — and does ' The Hospital objects to items 9 and 11 of the Interrogatories to the extent that their scopes include the identities of individuals whose only knowledge regarding the issues in the instant lawsuit arises from their participation in the Hospital's risk management, credentialing, peer review, or quality assurance processes, See, e.g., Palms of Pasadena Hosp. v. Rutigliano, 908 So. 2d 594 (Fla. 5th DCA 2005) (quashing trial court order requiring a hospital to identify the members of its credentialing committee).Nguyen v. Plantation General Hospital CASE NO. 14-014218 (04) not apply to interrogatories that seek testimony. 5. “Amendment 7 does not require production of documents . . that do not contain information about particular adverse medical incidents." Morton Plant Hosp. Assn, Inc. v. Shahbas, 960 So. 2d 820, 827 (Fla. 2d DCA 2007) (holding that a discovery request seeking documents relating to credentialing and re-credentialing of a physician encompasses documents that do not contain information about particular medical incidents); see also Bartow IIMA, LLC v. Kirkland, 126 So. 3d 1247, 1254 (Fla. 2d DCA 2013) (quashing order requiring blanket production of documents on a privilege log and requiring the circuit court to "address whether the documents ... contain reports of adverse medical incidents under Amendment 7"); Cofumbia Hospital Corporation of South Broward, d/b/a Westside Regional Medical Center v. Fain, 16 So. 3d 236, 242 (4th DCA 2009) (cautioning that "[c]are must be taken to remember that Amendment 7 affects only reports pertaining to adverse medical incidents."). An "adverse medical incident" under Amendment 7 has been interpreted to mean a specific event involving a specific patient which caused or could have caused injury or death. See W Fla. Reg’! Med. Ctr. v. See, 18 So. 3d 676 (Fla. 1st DCA 2009), affd, 79 So. 3d 1 (Fla. 2012). Furthermore, the court in See explained that the privilege at issue was "still in effect to the extent that it does not prohibit the production of records relating to adverse medical incidents under Amendment 7." See, 18 So, 3d at 689. 6. Amendment 7 does not require the Hospital to provide a patient access to records that are not made or received in the course of business by a health care facility or provider. A hospital's course of business has been defined as "the care and treatment of its patients, including records of such care and treatment, not theNguyen v. Plantation General Hospital CASE NO. 14-014218 (04) preparation of special reports and the conduct of special investigations." See Forbes v. Dhillon, MD., et al, Case No. 51-2007-CA-3758-WS/G (Fla. 6th Cir. Ct. February 7, 2011). 7. Importantly, the Hospital is not required to begin a search for responsive records that are within the scope of Amendment 7 until Plaintiffs pay in full of the Hospital's estimated cost of discovery. Florida Statutes § 381.028(7)(c)1, which the Florida Supreme Court left intact in its opinion in Fla. Hospital Waterman v. Buster, 984 So. 2d 478 (Fla. 2008), allows for a health care facility or provider to require that the patient requesting records under Amendment 7 pay in full all costs prior to the facility or provider acting on the request. MEMORANDUM OF LAW Florida law protects against the discovery of records considered by credentialing, peer review, and quality assurance committees that function within the Hospital, as well as records generated by or received by the Hospital's risk management department. Specifically, section 395.0191(8), Fla. Stat., protects the investigations, proceedings, and records of the Hospital in considering and acting upon an application for staff membership or clinical privileges. Section 395.0193(8), Fla. Stat., protects the investigations, proceedings, and records of the Hospital's peer review panels, disciplinary boards or committees acting in their peer review or disciplinary function. Section 395.0197(4), Fla. Stat., states thaf'incident reports are part of the workpapers of the attorney defending the licensed facility," and section 395.0197(13), Fla. Stat., states that annual reports and Code 15 reports submitted to AHCA are not "discoverable or admissible in any civil or administrative action, except in disciplinary proceedings by theNguyen v. Plantation General Hospital CASE NO. 14-014218 (04) agency or the appropriate regulatory board, nor shall records obtained pursuant to s. 456.071 be available to the public as part of the record of investigation for and prosecution in disciplinary proceedings made available to the public by the agency or the appropriate regulatory board." Section 766.101(5), Fla. Stat., protects the investigations, proceedings, and records of Hospital committees formed to evaluate and improve the quality of health care rendered by providers of health service, to determine that health services rendered were professionally indicated or were performed in compliance with the applicable standard of care, or that the cost of health care rendered was considered reasonable by the providers of professional health services in the area. The same statutes protect against the compulsion of testimony regarding the Hospital's credentialing, peer review, and quality assurance functions. For example, section 766.101(1), Fla. Stat., applies to meetings of committees "formed to evaluate and improve the quality of health care rendered by providers of health service, to determine that health services rendered were professionally indicated or were performed in compliance with the applicable standard of care." /d. The statute states that "no person who was in attendance at a meeting of such committee shall be permitted or required to testify in any such civil action as to any evidence or other matters produced or presented during the proceedings of such committee or as to any findings, recommendations, evaluations, opinions, or other actions of such committee or any members thereof" See section 766.101(5), Fla. Stat. Sections 395.0191(8) and 395.0193(8), Fla, Stat., contain identical language specific to credentialing and peer review processes. These statutes also protect the identities of participants in theNguyen v. Plantation General Hospital CASE NO. 14-014218 (04) Hospital's risk management and quality assurance processes from discovery. See, e.g., Palms of Pasadena Hosp. v. Rutigliano, 908 So. 2d 594 (Fla. 5th DCA 2005) (quashing trial court order requiring a hospital to identify the members of its credentialing committee). Prior to the passage of Amendment 7, no records or information within the scope of the above statutes was discoverable or admissible for any purpose in a civil action. While Amendment 7 provides patients access to certain formerly privileged records, the scope of that access is limited by the Amendment's terms: Amendment 7 only provides patients a right to access to records or an adverse medical incident made or received in the course of business by a health care facility or a health care provider. Amendment 7 does not entitle a patient access to records that are not records of an adverse medical incident made or received in the course of business by a health care facility or provider. Amendment 7 does not entitle a patient to discover the identities of participants in the Hospital's medical review or quality assurance processes. Amendment 7 does not entitle a patient to compel testimony. A. Amendment 7 Does not Apply to Interrogatories Item 2 of the Interrogatories seeks testimony relating to the Hospital's protected risk management, credentialing, peer review, and quality assurance processes. The scopes of items 9 and 11 of the Interrogatories can be interpreted to include the identities of participants in these processes. Such information is statutorily protected from discovery or introduction into evidence in this case. See Fla. Stat. §§ 395.0191(8), 395.0193(8), and 766.101(5); see also Palms of Pasadena Hosp. v. Rutigliano, 908 So, 2d 594 (Fla. 5th DCA 2005)Nguyen v. Plantation General Hospital CASE NO. 14-014218 (04) (quashing trial court order requiring a hospital to identify the members of its credentialing committee); Mt. Sinai Med. Ctr. of Greater Miami, Inc. v. Bernstein, 645 So, 2d 530 (Fla. 3d DCA 1994) (quashing order overruling hospital's objections to discovery of information relating to reports of the hospital's medical review committee and information relating to people participating on the medical review committee). As noted, Amendment 7 only purports to provide patients with "a right to have access to any records . . . relating to any adverse medical incident," which right is defined as "making the records available for inspection and copying." See Fla. Const. Art X, § 25(a) and (b)(4). Nothing in Amendment 7, the enabling statute or the Florida Supreme Court's ballot approval opinion suggests that Amendment 7 requires licensed facilities such as the Hospital to answer interrogatories propounded in a civil action. See Advisory Opinion to the Attorney General Re Patients' Right To Know About Adverse Medical Incidents, 880 So. 2d 617 (Fla. 2004). Thus, Amendment 7 plainly applies only to requests for records and documents that can be inspected and copied — and does not apply to interrogatories that seek testimony. In fact, the respondents in Fla. Hospital Waterman v. Buster, 984 So. 2d 478 (Fla. 2008), conceded that Amendment 7 does not affect the applicability of immunity from testimonial compulsion afforded the Hospital under Chapters 395 or 766 of the Florida Statutes. A copy of the Buster Respondents' Response to Petitioner's Motion for Rehearing in the Florida Supreme Court is attached hereto as Exhibit B. At page 2 of the Response, the Respondents state that "[als Waterman notes the Florida Hospital decision ... certainly did not invalidate[,] the two immunity privileges which the legislature included in peer review and risk management statutes in order to makeNguyen v. Plantation General Hospital CASE NO. 14-014218 (04) workable the public policy of assuring quality healthcare." Respondents go on to agree that Buster "is consistent with the Court's advisory opinion approving Amendment 7 for the ballot which did not suggest that immunity from suit or from testimonial compulsion was affected by Amendment 7." /d. During the oral argument in Buster, Justice Pariente of the Florida Supreme Court agreed with this interpretation, asking for agreement that "what is not at stake here is that nobody is saying that the immunity that people enjoyed before this amendment, that is immunity from participating or even testimonial compulsion . | see that as being different." Transcript of the Oral Argument before the Florida Supreme Court, 20, 44, 45, in Fla. Hosp. Waterman v. Buster, SC06-688, SC06-912, attached as Exhibit C. In Gray v. St. Petersburg General Hospital, et al., Case No.: 08-4287, Division — Cl-l 1 (Fla. 6th Cir. Ct. August 22, 2008), attached hereto as Exhibit D, the court, in an opinion after Buster, decided that Amendment 7 does not apply to interrogatories, finding that: The Court finds that Amendment 7 purports to provide patients with "a right to have access to any records ... relating to any adverse medical incident," which right is defined as "making the records available for inspection and copying." See Fla. Const. art X, § 25(a) and (b)(4). Nothing in Amendment 7, the enabling statute or the Florida Supreme Court's ballot approval opinion suggests that Amendment 7 requires licensed facilities such as the Hospital to provide written responses to questions or to respond to interrogatories propounded in a civil action. See Advisory Opinion to the Attorney General Re Patients’ Right To Know About Adverse Medical Incidents, 880 So. 2d 617, (Fla. 2004). Thus, Amendment 7 plainly applies only to requests for records and documents that can be inspected and copied, such as requests made in a request for production — and does not apply to any other type of requests, such as those made in an interrogatory. Other trial courts faced with this issue have reached the same conclusion. SeeNguyen v. Plantation General Hospital CASE NO. 14-014218 (04) also Troup v. Largo Med. Ctr., et al., Case No.: 12-0088578-Cl-13 (Fla. 6th Cir. Ct, May 12, 2014) (granting hospital's motion for protective order to the extent interrogatories sought the identities of parties who came to have knowledge of incident through their capacity as legal representative or involvement in peer review or similar committee), attached as Exhibit E; Lawrence v. Lawnwood Medical Center, Inc., et al., Case No. 56- 2009-CA-008405 (Fla. 19th Cir. Ct, June 27, 2012) (finding that Amendment 7 "does not permit a patient to compel testimony of otherwise privileged information relating to a hospital's credentialing, peer review, and quality assurance functions" and that "Plaintiff may not compel testimony concerning any investigation, proceeding, or record of a Hospital credentialing, peer review, and/or quality assurance committee."), attached as Exhibit F; McKoy v. Columbia Hosp. Corp. of S. Broward, d/b/a Westside Reg’! Med. Ctr., Case No.: CACE 10045900 12 (Fla. 17th Cir. Ct. May 22, 2012) (holding that the plaintiff could not obtain discovery via interrogatory of the steps the defendant hospital undertook in credentialing a physician), attached as Exhibit G; Grafal v. Osceola Regional Hospital, Inc., et al., Case No. 09-CA-1526-MP (Fla. 9th Cir. Ct. December 22, 2010) (sustaining the hospital's objections to interrogatories and entering protective order "based upon a finding that Amendment 7 does not authorize interrogatories."), attached as Exhibit H; Bridges v. Memorial Hospital Jacksonville, et al., Case No.: 16- 2008-CA-002389 Div CV—B (Fla. 4th Cir. Ct. February 25, 2009) (finding that "there is no authority within [Amendment 7] to allow interrogatories about "adverse medical incidents" to be served on health care providers" and that "Rio allow interrogatories would require Memorial to give testimony, in the form of sworn answers, regarding such adverse medical incidents."), attached as Exhibit I.Nguyen v. Plantation General Hospital CASE NO. 14-014218 (04) Furthermore, multiple Florida courts have specifically found that Amendment 7 does not require a hospital to identify the participants in a hospital's risk management, credentialing, peer review or quality assurance processes. See Baptist Hosp. of Miami, Inc. v. Garcia, 994 So. 2d 390, 393 (Fla. 3d DCA 2008) (holding that hospital not required to produce a privilege log regarding credentialing documents that would "divulge names and confidential information, which not only have nothing to do with adverse medical incidents discoverable under Amendment 7, but which remain exempt from discovery under sections 395.0191(8) and 766.101(5)"); Marcus v. University Hosp. and Med. Ctr., Case No.: 05-08138 (02) (Fla. 17th Cir. Ct. Dec. 1, 2010 ("The identities of the members of the executive committee and Board of Trustees are privileged, not discoverable and not admissible as evidence at the time of trial’), attached as Exhibit J; Mark v. Miami Beach Healthcare Group, Ltd., Case No. 10-18139 CA 09 (Fla. 11th Cir. Ct. November 5, 2010) (holding that hospital not required to identify individuals who provided information or participated in peer review panel, medical review committee, risk management committee or department, hospital committee or other hospital board), attached as Exhibit K; Nei! v. Surgical Park Center, Ltd., et al, Case No. 09-05492 CA 13 (Fla. 11th Cir. Ct. Nov. 3, 2009), cert. denied (concluding that "the name address and phone number of the members of the credentialing committee who gave a nurse staff privileges, constitute privileged information to the extent such information is contained in the credentialing file and is beyond the scope of Amendment 7."), attached as Exhibit L. The identities of the participants in the Hospital's credentialing, peer review, and quality assurance processes are statutorily protected and not discoverable under Amendment 7.Nguyen v. Plantation General Hospital CASE NO. 14-014218 (04) B. The Scope of Amendment 7 is Limited to Records of Adverse Medical Incidents While Amendment 7 provides patients access to some otherwise privileged records, the scope of that access is limited by the Amendment's terms: Amendment 7 only provides patients a right to access to records of an adverse medical incident that are made or received in the course of business by a health care facility or a health care provider. See Bartow HMA, LLC v. Kirkland, 126 So. 3d 1247, 1254 (Fla. 2d DCA 2013) (quashing order requiring production and requiring the circuit court to "address whether the documents ... contain reports of adverse medical incidents under Amendment 7; whether the privileges asserted are preempted by application of Amendment 7; or, in the case of a responsive document that is not discoverable under Amendment 7, whether the asserted privilege applies."); Columbia Hospital Corporation of South Broward, d/b/a Westside Regional Medical Center v. Fain, 16 So. 3d 236, 242 (4th DCA 2009) (cautioning that "Mare must be taken to remember that Amendment 7 affects only reports pertaining to adverse medical incidents."); and Morton Plant Hosp. Ass 'n, Inc. v. Shahbas, 960 So. 2d 820, 827 (Fla. 2d DCA 2007) ("Amendment 7 does not require production of documents . . . that do not contain information about particular adverse medical incidents."). The See court explained the limits of the term "adverse medical incident" in Amendment 7. Specifically, "the word 'incident' itself indicates an isolated event." See W. Fla. Reg'l Med. Ctr, v. See, 18 So. 3d 676, 690 (Fla. 1st DCA 2009), affd, 79 So. 3d 1 (Fla. 2012). The phrase "adverse medical incident" can only mean "a specific incident involving a specific patient that caused or could have caused injury to or the death ofNguyen v. Plantation General Hospital CASE NO. 14-014218 (04) that patient." /d. (citing Shahbas, 960 So. 2d at 827). The court explained that while an adverse medical incident may be a negligent act or omission, that "act or omission must be connected with a patient and must be the cause or near-cause of an injury or death." See, 18 So. 3d at 690. Moreover, the court in See explained that the privilege at issue was "still in effect to the extent that it does not prohibit the production of records relating to adverse medical incidents under Amendment 7." See, 18 So. 3d at 689. Accordingly, records within the scopes of Fla. Stat. §§ 395.0191(8), 395.0193(8), 395.0197 and 766.101(5) remain protected unless they are records of a specific incident involving a specific patient that caused or could have caused injury to or the death of that patient. Accordingly, any records responsive to item 14 of the Request that are not records of an adverse medical incident remain privileged from discovery. Cc. The Scope of Amendment is Limited to Records Made or Received in the Course of Business by a Healthcare Facility or Provider. Amendment 7 only provides a patient the right to have access to records "made or received in the course of business by a healthcare facility or provider." See Art. X, sect 25(a), Fla. Const.; Benjamin v. Tandem Healthcare, Inc., 998 So. 2d at 566, 570 (Fla. 2008) ("In interpreting a constitutional amendment, we begin with the amendment's plain language."). While records created as part of the Hospital's efforts in providing care and treatment to patients may be made or received in the course of business, records outside of such practice are not and thus would fall outside the scope of Amendment 7. Courts have uniformly held the business of a hospital is the care and treatment of patients. See, e.g., Cooks v. O'Brien Properties, Inc., 710 A.2d 788, 795 (Cann. App.Nguyen v. Plantation General Hospital CASE NO. 14-014218 (04) Ct. 1998) ("the business of a hospital is treating patients") (citation omitted); Williams v. Alexander, 129 N.E.2d 417, 419 (NY Ct. App. 1955) ("The business of a hospital, it is self-evident, is to diagnose and treat its patients’ ailments."). Conversely, it is expressly not the business of a hospital to make records for use in subsequent litigation. See, e.g., Temple v. F. W. Woolworth Co., 356 A.2d 880, 882 (Conn. 1975) ("[l]t is not the business of a hospital to collect and preserve information for use in litigation"); Bauer v. Veith, 130 N.W.2d 897, 900 (Mich. 1964) (stating that it cannot be "claimed that it was ‘the regular course of such [hospital] business to make such memorandum or record’) (citation omitted, alteration in original); Green v. City of Cleveland, 444, 83 N.E,2d 63, 65 (Ohio 1948) ("[I]t was the business of the hospital to diagnose plaintiff's condition and to treat her for her ailments, not to record a statement describing the cause of the accident in which plaintiff's injuries were sustained"). Thus, to the extent that a record is made not for the purpose of care and treatment, the record is not within the scope of Amendment 7. Accordingly, a record created for purposes of investigation of an unusual event for potential future litigation that is not similarly mandated is not made "in the course of business." Cf. Brown v. International Paper Co., 710 So. 2d 666, 668 (Fla. 2d DCA 1998) (finding that a letter from Federal Express and handwriting analyst's report created as part of investigation of forged purchase order not made in the course of business); and Simmons v. State, 697 S. 2d 985, 986 (Fla. 4th DCA 1997) (finding that a list itemizing stolen items not demonstrated to be made in course of business). In Forbes v, Dhillon, MD., et al., Case No. 51-2007-CA-3758-WS/G (Fla. 6th Cir. Ct. February 7, 2011), a copy of which is attached as Exhibit M, the court agreed withNguyen v. Plantation General Hospital CASE NO. 14-014218 (04) this analysis, stating: "It is the belief of the undersigned that Community Hospital's ‘course of business’ is the care and treatment of its patients, including records of such care and treatment, not the preparation of special reports and the conduct of special investigations." /d. The court limited the disclosure of records to "those that appear to have been made 'in the course of business’ of Community Hospital.” /d. Thus, records that may be responsive to item 14 of the Request that are not made as part of the care or treatment of a patient are not made or received in the course of business by a healthcare facility or provider and, consequently, remain privileged. D. The Hospital is entitled to Its Costs Prior to Producing Records Pursuant to Amendment 7 To the extent that Plaintiffs asserts Amendment 7 as a basis for access to records responsive to items 14 and 15 of the Request, the Hospital is not required to begin a search for records until Plaintiffs pay in full the Hospital's estimated costs to search for and review the records which may be responsive. The Florida Supreme Court in Buster upheld section 381.028(7)(c)1, Fla. Stat., which allows for the Hospital to require that a patient pay in full the costs of production of records prior to acting on a records request under Amendment 7. See also Columbia Hosp. Corp. of S. Broward v. Fain, 16 So. 3d 236, 241 (Fla. 4th DCA 2009) (noting that that §381.028(7)(c)1 requires payment prior to production, and that the provision was deemed to be valid in Buster). This statutory provision is especially important here, where to respond just to item 15 of the Request, the Hospital would have to review all risk management, credentialing, peer review, and quality assurance records in its possession, custody orNguyen v. Plantation General Hospital CASE NO. 14-014218 (04) control created over the twenty (20) year period that the individuals named in the request worked at the Hospital. Someone with sufficient training would have to determine whether each record is responsive to the subject requests and also whether the record is a record of an adverse medical incident made or received in the course of business under Amendment 7. Next, the Hospital would have to redact any responsive records of patient-identifying information pursuant to HIPAA’ s federal privacy requirements. The process of de-identifying any responsive record produced would have to be accomplished manually by a staff member familiar with the Hospital's records and HIPAA privacy requirements. Finally, the Hospital would have to photocopy the redacted records prior to production. The cost for the Hospital to respond to these items, which Plaintiffs are obligated to pay prior to the Hospital beginning its search, would be extremely high. E. The Hospital is Not Required to Provide a Privilege Log with Respect to Items 14 or 15 of the Request Because this Court has yet to decide the proper scope of the Subject Requests, and because Plaintiffs have yet to pay the estimated cost to produce the records responsive to items 14 or 15 of the Request, the Hospital takes the position that it is not required to provide a privilege log with respect to those items at this time. Until the Court rules on the objections to production asserted by the Hospital, any preparation of a privilege log is premature. See Gosman v. Luzinski, 937 So. 2d 293, 296 (Fla. 4th DCA 2006) (finding that "[bJefore a written objection to a request for production of documents is ruled upon, the documents are not ‘otherwise discoverable’ and thus the obligation to file a privilege log does not arise."); accord Royal CaribbeanNguyen v. Plantation General Hospital CASE NO. 14-014218 (04) Cruises, Ltd. v. Doe, 964 So. 2d 713, 718 (Fla. 3d DCA 2007); Life Care Ctrs. of Am. v. Reese, 948 So. 2d 830, 833 (Fla. 5th DCA 2007) (holding that "[t]he trial court [i]s required to address the discoverability of the requested documents before ordering [defendants] to review them all for privileged material."); Consol. Res. Health Care Fund |, Ltd. v. Ruffini, 947 So. 2d 1278 (Fla. 4th DCA 2007) (determining that litigant did not waive privilege by failing to respond to discovery requests where court did not first rule on objections as to breadth of requests). This view has been upheld in W. Fla. Reg’ Med. Ctr. v. See, 18 So. 3d 676 (Fla. 1st DCA 2009); and Columbia Hosp. Corp. of S. Broward v. Fain, 16 So. 3d 236 (Fla. 4th DCA 2009). These courts found that where threshold issues exist, the petitioner did not waive the peer review, work product or any other privilege by failing to file a privilege log. WHEREFORE, Defendant Plantation General Hospital, L.P., d/b/a Plantation General Hospital respectfully requests that this Court enter a protective order with respect to items 14 and 15 of Plaintiffs Request to Produce and items 2, 9 and 11 of the Plaintiff's Interrogatories to Hospital. CERTIFICATE OF SERVICE | HEREBY CERTIFY that a true and correct copy of the foregoing document was e-filed and e-served to all on the attached mailing list this 23" day of October, 2014. BY: /s/ JOHN W. MAURO, ESQ. JOHN W. MAURO, ESQ. jwm@bclmr.com Florida Bar No: 276634 CAROL J. HEALY GLASGOW, ESQ. cjg@belmr.com Florida Bar No. 026239 BILLING, COCHRAN, LYLES,Nguyen v. Plantation General Hospital CASE NO. 14-014218 (04) MAURO & RAMSEY, P.A. Attorneys for Defendants, PGH and Rathbun SunTrust Center, 6" Floor 515 E. Las Olas Blvd., Fort Lauderdale, Florida 33301 Ofc: (954) 764-7150; Fax: (954) 764-7279 E-Filing Address: ftl-pleadings@bclmr.com $:\34412204\PLDS\MPO to PI RTP & Int 10-23-14 - PGH.doc/klaNguyen v. Plantation General Hospital CASE NO. 14-014218 (04) Mailing List Nguyen/PGH 344.12204 Maria D. Tejedor, Esq. Counsel for Plaintiff Diez-Arguelles Tejedor 505 N. Mills Avenue Orlando, FL 32803 407-705-2880 Jennifer@theorlandolawyers.com mail@theorlandolawyers.com Steven L. Lubell, Esq. Counsel for Dr. Birman & Sunlife OB/GYN Ariel D. Widlansky, Esq. Lubell & Rosen 200 S. Andrews Avenue Ft. Lauderdale, FL 33301 954-880-9500 ariel@lubellrosen.com Amanda@lubellrosen.com M. Katherine Hunter, Esq. Counsel for Dr. Santini & Florida United Chimpoulis, Hunter & Lynn, P.A. Radiology 7901 S.W. 36" Street, Suite 26 Davie, FL 33328 954-463-0033 954-463-9562 — fax ahoney@chl-law.com khunter@chl-law.com cwieland@chl-law.com Georges Edouard, M.D. (pro se) 4330 W. Broward Blvd. Suite C Plantation, FL 33317